Judge, jury and executioner: Why the Contempt of Parliament Bill holds the Constitution in contempt

The danger with the Bill is obvious — it is a vague and overly broad law with criminal consequences. There is no story where that has ended well.
Published May 23, 2023

As a country, we seem to have mastered the ability to refuse to learn from the past. The same mistakes are repeated with little to no regard for the consequences.

In this case, the story goes something like this: parliament enacts laws, the laws are ridiculously vague, and successive governments abuse those laws for their desired purpose. The purpose differs depending on which fundamental right the government at the time feels like trampling on.

‘Contempt of Parliament’

The latest feather in the government’s remarkable legislative cap is the Contempt of Parliament Bill 2023. Possible offences include wilfully violating any law prescribing the immunities or privileges of the members or refusing to obey any order or direction of a parliamentary committee.

It is clear that for parliament to do its job effectively, it must have the requisite powers, and these powers must be meaningful. In principle, there is nothing wrong with a law that strengthens the privileges and powers of the legislature. The trouble is that the bill goes much further than that — it appears to be less about strengthening parliament, and more about asserting dominance through coercive powers.

First, the language of the bill is overly vague and broad. The proposed law, for example, would make it an offence to refuse to obey “any order or direction of the House or a Committee thereof.” This is beyond what is contemplated in the Constitution.

 Article 66(3) of the Constitution.
Article 66(3) of the Constitution.

Article 66(3) of the Constitution states that a law may be enacted for punishing individuals who refuse to give evidence or produce documents before a parliamentary committee. The rationale for this is that no parliamentary committee can function if witnesses do not appear, and documents are not produced. However, the bill seems to have gone well beyond this provision, including as an offence a refusal to obey “any order” or “any direction” by parliament.

Second, the bill gives the parliamentary contempt committee penal powers, the punishment for which includes imprisonment for a term that may extend to six months and/or a fine of Rs1 million. Historically, in other jurisdictions, the powers of parliament have included the power to punish individuals for contempt or breach of privilege. The last time the House of Commons in the UK fined a non-member was in 1666. The House of Commons last used its power to imprison in 1880. Centuries later, our government seems to have discovered the need for this power.

It is also clear that the Constitution contemplates any such punishment must be imposed by a court of law. Again, Article 66(3) states that “any such law may empower a court to punish a person who refuses to give evidence or produce documents”. The bill ignores this provision in the Constitution, instead, giving parliament the power to impose criminal sanctions.

Two steps back

In doing so, parliamentarians with no training in the law want to have the power to put people behind bars. The implications of this are far-reaching and it is unconstitutional.

Furthermore, parliament’s penal power to punish for contempt are violative of the principles of natural justice and the right to a fair trial. It allows parliament to be a judge in its own cause. In this case, a parliamentary contempt committee will decide whether an individual has committed an offence against parliament.

In 1999, a joint committee on parliamentary privilege in the UK recommended that the penal powers for any contempt of parliament or breach of privilege for non-members must be transferred to the courts. In 2021, the UK committee of privileges noted that any “attempt to exercise the House’s historic powers to fine or imprison would contravene the Human Rights Act 1998.” A parliamentary committee acting as judge, jury, and executioner infringes on the right to a fair trial. While the world seems to be moving forward, we seem to be finding new ways to fall back.

Prior to the passage of the bill, according to foreign minister Bilawal Bhutto Zardari, the Supreme Court had committed contempt of parliament. The “contempt” was the court order directing the issuance of funds for the elections. Apparently, the Supreme Court enforcing its decision to hold elections is what is considered contemptuous by the government. Because parliament should be able to block the funds for the elections indefinitely, violate court orders and the Constitution, and the courts should silently watch or risk committing “contempt of parliament” per our foreign minister. To the extent that the government plans to bring sitting judges within the purview of this bill, it violates the independence of the judiciary.

The danger with the bill is obvious: it is a vague and overly broad law with criminal consequences. There is no story where that has ended well. Such laws have always, without fail, come back to haunt those who once championed them. Having established the presence of a legal weapon, it is only a matter of time before it goes off. The problem with the ambiguity of this law is that it can be aimed in any direction, loaded with any vendetta, and used to stifle any kind of dissent.

Refusal to learn from the past

When the PTI was in the opposition, the controversial Prevention of Electronic Crimes Act 2016 was passed by the PML-N government. When the PTI came into power, an ordinance was promulgated, making the law even more oppressive and open to abuse. The way in which this despotic law has been used against politicians across the spectrum, journalists, and activists is there for all to see.

Similarly, the National Accountability Bureau (NAB), since its inception has been used for political victimisation. While members of the current government have themselves been subjected to witch hunts by the accountability watchdog, they have no qualms using it against the opposition today. The vicious cycle continues.

Currently, our parliament seems to be focused on legislation that curtails the powers of the Chief Justice of Pakistan because they don’t like his decisions and giving themselves the power to imprison those who “commit contempt of parliament”. The bill will inevitably result in roving inquiries against any citizen or member the government considers an inconvenience and bring them within the scope of the law. One wonders what other gems the government is going to come up with.

“Remember that you are now a sovereign legislative body and you have got all the powers. It, therefore, places on you the gravest responsibility as to how you should take your decisions,” said Mr Jinnah in his address to the Constituent Assembly.

To give it a slightly more pop-cultural reference: “With great power comes great responsibility”. Several times, parliament has shirked its responsibility to the people, and disregarded it for short-term political gains. It never has and never will end well.

The bill is another invitation to abuse.